MARY CATHERINE KATIE SANCHEZ v. PRESIDIO COUNTY TEXAS FRANCES GARCIA (2021)

REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE

TO THE HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE:

BEFORE THE COURT is Defendants Presidio County, Texas (individually, “Presidio County” or “County”), and Frances Garcia's (individually, “Garcia”) (collectively, “Defendants”) renewed motions for judgment as a matter of law (hereafter, “Renewed Motions”), both of which are incorrectly titled “Motion for Judgment Notwithstanding the Verdict.”¹ (Docs. 67, 68).² This case is before the U.S. Magistrate Judge by a standing order of referral from the District Judge pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS Defendants' Renewed Motions be DENIED IN MAJOR PART and GRANTED IN PART. (Doc. 67, 68).

I.BACKGROUND

On July 17, 2019, Plaintiff Mary Catherine “Katie” Sanchez (“Plaintiff”) filed this suit for First Amendment retaliation against Defendants. (See Doc. 1). Plaintiff alleges that, in retaliation for Plaintiff running against Defendant Garcia for public office in Presidio County, Texas, Defendants eliminated Presidio County's Office of Management and Budget (“OMB”), effectively terminating Plaintiff's employment with Presidio County. Id. at 3–4.

Plaintiff twice ran against Defendant Garcia for Presidio County Treasurer—first in November 2014 and four years later in 2018. (Doc. 16-2 at 83). After losing the first election in November 2014, Plaintiff applied to and was appointed as the Assistant Director of the 0MB (“OMB Director”). Id. at 16–17. The 0MB was created in 2014 and was supervised by the Presidio County Commissioners Court (“Commissioners Court”). Id. at 3, 17. In November 2017, after working for the 0MB for three years without incident, Plaintiff announced her candidacy for Presidio County Treasurer (“County Treasurer”). Id. at 83. Plaintiff ultimately lost to Defendant Garcia in the March 2018 Democratic Party Primary Election. Id. at 84.

In August 2018, Presidio County Commissioner Loretto Vazquez (“Commissioner Vasquez”) put a discussion item on the County Commissioners' agenda to eliminate the 0MB. (Doc. 16-2 at 35–36). The discussion item sought “discussion with action to abolish the department of Presidio County Office of Management and Budget, 0MB, to be effective at the new fiscal year of October 1 of 2018.” (Doc. 15-1 at 15). On August 22, 2018, the Commissioners Court voted 4-1 to abolish the 0MB for the next fiscal year, effective September 30, 2018. (Doc. 15-2 at 21). After the August 22 meeting, Plaintiff ultimately left her position with the 0MB and on August 27, 2018, began working as a jail records clerk in the Presidio County Sheriffs Department. (Doc. 16-2 at 65).

Plaintiff filed the instant lawsuit on July 17, 2019. (See Doc. 1). Defendants filed a Motion for Summary Judgment on November 6, 2020. (See Doc. 15). On June 20, 2021, the Court denied the Motion for Summary Judgment and the case proceeded to trial. (See Doc. 47). At trial, but prior to the submission of the case to the jury, Defendants moved for judgment as a matter of law pursuant to Federal Rule 50(a) of the Federal Rules of Civil Procedure (hereafter, “Federal Rules”) in motions each incorrectly titled “Motion for Directed Verdict” (hereafter, “Original Motions”). (See Doc. 70 at 96-111; see also Docs. 81, 82).³ The Court denied Defendants' motions and submitted the case to the jury. (Doc. 70 at 112). The jury was instructed to the following issues: First Amendment retaliation (including (1) adverse employment action, (2) candidacy as a substantial factor, and (3) but-for causation); qualified immunity; compensatory damages; and punitive damages. (Doc. 63).

On July 1, 2021, the jury returned a verdict in favor of Plaintiff: the jury found that both Defendants engaged in a retaliatory action in violation ofPlaintiff's First Amendment rights, and that Garcia was not entitled to qualified immunity. (See Doc. 63 at 1-2). The jury also awarded Plaintiff $1,000,000 in compensatory damages and $1,000,000 in punitive damages. See id. at 3. On August 11, 2021, Defendants filed their separate Renewed Motions pursuant to Federal Rule 50(b). (See Docs. 67, 68). Plaintiff filed responses to each of the Renewed Motions. (See Docs. 71, 72). Defendants later filed replies to both of Plaintiff's responses. (See Docs. 75, 76). On September 22, 2021, the Court held a hearing on these motions. (See Doc. 83). Accordingly, this matter is now ready for disposition.

II. LEGAL STANDARD

The Federal Rules provide that a party may make a motion for judgment as a matter of law during trial and prior to submission of the case to the jury. FED. R. CIV. P. 50(b). If the Court denies this motion, “the moving party may renew its motion no later than twenty-eight days after the entry of judgment.”⁴ Id.; Thomas v. Hughes, No. 5:16-CV-00951-DAE, 2020 U.S. Dist. LEXIS 256023, at *10–11, 2020 WL 10055656, at *2–*3 (W.D. Tex. July 17, 2020). Judgment as a matter of law is to be granted for the moving party when “a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party” in the case. FED. R. CIV. P. 50(a)(1); see Total E&P United States v. Marubeni Oil & Gas (USA), Inc., 824 Fed. Appx. 197, 203 (5th Cir. 2020). “Special deference” is allocated to a jury's verdict during review for a Federal Rule 50(b) motion. Zastrow v. Houston Auto M. Imps. Greenway, Ltd., 695 Fed. Appx. 774, 777 (5th Cir. 2017) (citing McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 461 (5th Cir. 2005)).

“[A] jury is entitled to draw reasonable inferences from the evidence, and those inferences may constitute sufficient proof to support a verdict.” Long v. Faenas Transp., LLC, No. 1:19-CV-200, 2021 U.S. Dist. LEXIS 73175, at *15, 2021 WL 1379513, at *5 (E.D. Tex. Mar. 18, 2021) (quotation marks omitted) (citing Adams v. Ethyl Corp., 838 Fed. Appx. 822, 827 (5th Cir. 2020)). Courts will “uphold a jury verdict unless the facts and inferences point so strongly and so overwhelmingly in favor of one party that reasonable [jurors] could not arrive at any verdict to the contrary.” Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001). Thus, the Court “should grant [the] motion ․ only when the facts and inferences point so strongly in favor of the movant that a rational jury could not reach a contrary verdict.” Hughes, 2020 U.S. Dist. LEXIS 256023, at *11, 2020 WL 10055656, at *3 (quoting SMI Owen Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008)). “If reasonable persons․ could differ in their interpretations,” the post-verdict motion should be denied. Chrimar Sys. v. Alcatel-Lucent Enter. USA, No. 6:15-CV-00163-JDL, 2017 U.S. Dist. LEXIS 19587, at *6, 2017 WL 568712, at *2 (E.D. Tex. Feb. 3, 2017) (emphasis added). Accordingly, in reviewing a renewed motion, such motion will be denied if there is “more than a mere scintilla of evidence to prevent judgment ․ in favor of the movant.” Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007). In making this determination, “the court asks whether the state of proof is such that reasonable and impartial minds could reach the conclusion the jury expressed in the verdict.” Burns v. Nielsen, 506 F. Supp. 3d 448, 462 (W.D. Tex. 2020).

The “legally sufficient” bar a movant must overcome in order for the Court to sidestep a jury's factual findings is incredibly high. The Fifth Circuit has delineated this standard as meaning that a jury's verdict must be “supported by substantial evidence.” OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir. 2016). To this end, the Court in its review is “not free to reweigh the evidence or to re-evaluate the credibility of witnesses.” Hughes, 2020 U.S. Dist. LEXIS 256023, at *11, 2020 WL 10055656, at *3 (quoting Brown v. Kinney Shoe Corp., 237 F.3d 556, 564 (5th Cir. 2001)). Rather, the Court is to “credit the non-moving party's evidence and disregard all evidence favorable to the moving party that the jury is not required to believe.” Fulton v. United Airlines, Inc., No. 19-20140, 2021 U.S. App. LEXIS 20433, at *5, 2021 WL 3575028, at *2 (5th Cir. Aug. 12, 2021) (emphasis added) (quoting Janvey v. Romero, 817 F.3d 184, 187 (5th Cir. 2016)); see also Reeves v. Sanderson Plumbing Prods., 530 U.S. 130, 151 (2000). In other words, the Court “should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151. The remaining evidence “must be viewed in the light most favorable to the nonmovant.” Montano v. Orange County, Tex., 843 F.3d 865, 873–74 (5th Cir. 2016); Rodriguez v. City of Corpus Christi, 687 Fed. Appx. 386, 388 (5th Cir. 2017) (acknowledging that reasonable inferences are to be drawn “in the light most favorable to the verdict”).

III.DISCUSSION

Pending before the Court are Defendants' Renewed Motions. (Docs. 67, 68). While both motions have indubitably similar tracking of their arguments,⁵ each does raise some points unique to their respective Defendant. (See Docs. 67, 68). Therefore, the undersigned will analyze each motion in turn.

1) Defendant Frances Garcia's Renewed Motion

As an initial matter, Defendant Garcia does not seek in her Renewed Motion judgment as a matter of law as to whether Plaintiff suffered an adverse employment decision or that Defendant Garcia had a “non-retaliatory” reason for her actions. (See generally Doc. 67; see also Doc. 70 at 107–08, 110). However, Garcia does seek judgment as a matter of law as to whether Plaintiff proved: (1) Garcia had a retaliatory intent or animus in eliminating Plaintiff's position as 0MB Director; (2) Garcia caused a violation of Plaintiff's First Amendment rights by her answering the questions of Commissioners Vasquez and Bentley; and (3) Defendant Garcia's actions were objectively reasonable. (Doc. 67 at 2, 10–11). Overall, Garcia's motion argues that she is entitled to judgment as a matter of law based upon qualified immunity. Id. at 3–4.

a. Arguments

In the Fifth Circuit, a government official is entitled to qualified immunity if Plaintiff fails either step of a two-part analysis: “(1) whether [p]laintiffs have stated a violation of their First Amendment rights; and if so, (2) whether [defendant's] conduct was objectively reasonable in light of clearly established law.” Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305–06 (5th Cir. 2020) (citing Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)). As to the second prong, it is “better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendant[ ] was objectively unreasonable in the light of that then clearly established law.” Id. at 306 (quoting Hare v. City of Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998)). Thus, there are effectively three prongs to the qualified immunity analysis which Plaintiff must have proven at trial to overcome Garcia's defense: (1) Plaintiff stated a violation of her First Amendment right against retaliation by an employer; (2) the allegedly violated constitutional right was clearly established at the time of the Commissioners Court's decision to eliminate the 0MB; and (3) Garcia's conduct was objectively unreasonable at the time. See id.

Based upon this standard, Garcia submits that, as to the first factor, she herself did not violate a constitutional right of Plaintiff. (Doc. 67 at 4–7). Specifically, Garcia claims that she was not a budget officer, did not participate in preparation of the budget or enactment of budget policies, and had no involvement in or authority over the Presidio County budget or the creation or elimination of Presidio County departments or jobs. According to Garcia, these decisions were made by the Commissioners Court; given her lack of authority to do so, she did not personally violate Plaintiff's constitutional rights and therefore “cannot be held liable for the legislative decision of the Commissioners Court.” Id. at 2, 5. Garcia argues that her “alleged retaliatory motive” cannot be imputed to the action of the Commissioners Court, in contradistinction to Plaintiff's reliance on Fifth Circuit authority in Sims v. City of Madisonville, which indicated that non-final decisionmakers can still be held liable for the eventual violation. Id. at 5. Garcia concludes that this “cat's paw” liability, a sort of reverse-vicarious liability, “does not apply to First Amendment claims,” but rather only to subordinate employees “in an ordinary employment relationship ․ when they are the ‘but for’ cause of the employer's decision. Id. The Commissioners Court as the ultimate authority in the county therefore must have first violated Plaintiff's First Amendment rights for Garcia to be liable, which was not sufficiently proven, according to Garcia. (Doc. 67 at 7). In any event, Garcia claims, the evidence to prove retaliatory intent or motive as to Garcia is insufficient. Id. at 5.

On the second factor, Garcia next supports her defense by arguing that the rights allegedly violated by Garcia's acts were not clearly established at the time the decisions were made. Id. at 7-8. The Sims case, Garcia claims, was decided “less than two months before the August 22 meeting where the commissioners voted to eliminate the OMB,” which is too soon a time to be considered “clearly established.” Id. at 8–9.

Lastly, Garcia argues that, as is required for qualified immunity, her actions were taken “in an objectively reasonable manner.” Id. at 10–11. In support, Garcia claims that her actions were of the sort that “reasonable public officials could differ as to whether [her] actions were lawful,” thereby granting her immunity. Id. at 11. Garcia then flip-flops her claim to immunity, stating instead that Garcia's act was “legislative” and that therefore she “has absolute immunity.” Id.

Garcia submits two additional grounds for judgment as a matter of law relating to the jury's damages awards: compensatory damages, and punitive damages. (Doc. 67 at 11-15). As to compensatory damages, Garcia argues that Plaintiff did not request damages for reinstatement, back pay, front pay, lost wages, or medical bills; therefore, Garcia deduces, Plaintiff must have been claiming damages for mental anguish. Id. at 11. Plaintiff, Garcia argues, did not put Defendants on proper notice for mental anguish, so she is unable to recover. Id. at 12. Regarding punitive damages, Garcia cries that malice must be proven for such damages to be awarded, and that even if they are, the $500,000 amount is “grossly excessive” given the low reprehensibility of her conduct. Id. at 14.

b. Qualified Immunity

Unlike with some of the waived arguments advanced in the Renewed Motion, Garcia preserved her objection as to qualified immunity. Garcia in her Renewed Motion raises issues as to the insufficiency of evidence regarding the circumvention of Garcia's presumed qualified immunity defense. (See Doc. 67 at 4–11). As noted above, the defense of qualified immunity will be available to Garcia if Plaintiff failed to prove any one of the three prongs to the qualified immunity analysis: (1) Plaintiff stated a violation of her First Amendment right against retaliation; (2) the allegedly violated constitutional right was clearly established at the time of the Commissioners Court's decision to eliminate the 0MB; and (3) Garcia's conduct was objectively unreasonable. See Powers, 951 F.3d at 306. On these elements, the jury was instructed accordingly. (See Doc. 61 at 7–8).

i. Legal Standards Decided by the Court

Garcia additionally advances two law-based arguments, both of which were raised in her preverdict Original Motion. (Doc. 81 at 2–7). The arguments in the Renewed Motion concern whether (1) a non-final-decisionmaker could be held liable for the ultimate Commissioners Court action, and (2) whether Plaintiff's constitutional rights allegedly violated here were “clearly established” under the qualified immunity standard. (Doc. 67 at 4–10).

The question as to whether Garcia, as a non-final-decisionmaker, could as a matter of law be liable for the Commissioners Court action is a question of law. Here, and judging only by law existing on August 22, 2018, the day of the decision to eliminate the 0MB, the Fifth Circuit had held months prior that “liability can attach to a public official who did not make the final employment decision.” Sims v. City of Madisonville, 894 F.3d 632, 641 (5th Cir. 2018). This Court already resolved the question of law that Garcia continues to argue: the Sims standard allowing for liability for non-final-decisionmakers where a defendant's retaliatory animus “is a link in the causal chain that leads to a plaintiff's firing” does apply. Id. at 639; (See Doc. 61 at 5–6). Thus the Court had, both at the start of trial and during trial, determined and applied Sims to its evaluation of the evidence. (See Doc. 47; Doc. 70 at 112 (denying Original Motions); see also Doc. 61). Thus, under the renewed Federal Rule 50(b) motion standard, if sufficient evidence was produced for the jury to conclude that Garcia's actions were in fact a “link in the causal chain” of the alleged violation Plaintiff's constitutional rights, the Court will grant deference to the jury's finding and must hold against granting Garcia's Renewed Motion.

The second question regarding the clearly established status of Plaintiff's constitutional rights as alleged here was also a question of law for the Court—not the jury—to decide. See, e.g., Taylor v. McDonald, No. 5:14-CV-149-C, 2018 U.S. Dist. LEXIS 235074, at *9, 2018 WL 10501648, at *3 (N.D. Tex. Sept. 14, 2018) (citing Elder v. Holloway, 510 U.S. 510, 516 (1993)); see also White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992) (“Whether the conduct of which the plaintiff complains violated clearly established law is an essentially legal question.”); Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001) (affirming that the “scope of clearly established law and the objective reasonableness of those acts of the defendant that the district court found the plaintiff could prove at trial are legal issues”); but see White v. Walker, 950 F.2d 972, 976 (5th Cir. 1991) (“[I]fthere are triable issues of fact about whether an officer could reasonably believe that his conduct was legal, then a jury should evaluate the question.”). Here, as in Walker, Garcia asserts that she acted in an objectively reasonable manner and was “merely doing her job.” (Doc. 67 at 11). Plaintiff's rights were clearly established, as the Court determined (Doc. 61 at 7), and there is no room for debate on the matter at this stage. Thus, the Court's only duty in reviewing Garcia's Renewed Motion is to determine the legal sufficiency of the evidence presented at trial relative to the issue of Garcia's objective reasonableness in the conduct at hand.

ii. Retaliatory Intent or Motive

Garcia's first preserved argument ripe for consideration is that Plaintiff failed to present sufficient evidence to prove that Garcia possessed a retaliatory intent. (Doc. 67 at 2-3). The jury was instructed:

To prove Defendant Frances Garcia wrongfully caused the decision to eliminate the Office of Management and Budget and Plaintiff Katie Sanchez's position, Plaintiff Katie Sanchez must show, by a preponderance of the evidence, that Defendant Frances Garcia had retaliatory animus against Plaintiff Katie Sanchez due to her exercise of her First Amendment rights ․

(Doc. 61 at 6) (emphasis added). This element, along with causation, comprise two of the primary elements of a First Amendment retaliation claim. See, e.g., Caldwell v. Medina, No. 1:19-CV-524-RP, 2020 WL 4043501, at *9 (W.D. Tex. July 17, 2020) (citing Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016)).

Plaintiff introduced evidence at trial about her long-standing problems with Garcia, starting in 2016. (Doc. 84 at 14, 19). By her own words, following Plaintiff's announcement of her candidacy for County Treasurer in 2017, Garcia “wasn't happy.” Id. at 128:23. Garcia herself testified she planned to introduce an agenda item with the Commissioners Court for an April 11, 2018, meeting regarding Plaintiff, the 0MB, and Garcia's very own complaints, even though there was not a single written complaint against Plaintiff by anybody else. (Doc. 80 at 136, 140; Doc. 84 at 40). Garcia admitted that she spoke with several commissioners about the complaint agenda item, namely Commissioner Brenda Bentley (“Commissioner Bentley”). Id. at 138–39. Further, Garcia testified that her belief at the time of her early 2018 request to discuss Plaintiff in front of the Commissioners Court was that she thought Plaintiff “was trying to invade on [her] territory or [her] duties.” (Doc. 84 at 21:18–19). Before this agenda item could be heard, Garcia exclaimed that, at the time, she “can't deal with [Plaintiff] anymore.” Id. at 39:6.

Plaintiff additionally provided evidence that Garcia sent various communications to county employee Chase Snodgrass and the Texas Association of Counties discussing the advantages and disadvantages of having a treasurer's office, auditor's office, and 0MB. (Doc. 80 at 146, 149). Additionally, Commissioner Vasquez testified that Garcia spoke directly with him about eliminating the 0MB, and that there had indeed been disagreements between Plaintiff and Garcia (Doc. 84 at 72, 73). Commissioner Vasquez testified that there was in fact no performance-based reason to eliminate Plaintiff's position, and that Garcia never mentioned any cost-savings elimination reasons for the elimination of the 0MB in the preceding forty-two months. Id. at 94, 97.

Here, the undersigned finds that Plaintiff presented evidence indicating that not only did Garcia have admitted and known personal problems with Plaintiff, but she specifically made several efforts to bring to the Commissioners Court's attention the 0MB and Plaintiff's performance. A reasonable jury could have viewed this evidence, most of which comes from Garcia herself, and reached the conclusion that, indeed, Garcia possessed a retaliatory animus against Plaintiff for running against her in the County Treasurer election. Therefore, the undersigned finds that sufficient evidence existed at trial for the jury to reasonably conclude Garcia acted with a retaliatory motive. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Garcia on the issue of retaliatory animus.

iii. Causation

Garcia next argues Plaintiff did not sufficiently prove that Garcia's alleged retaliatory animus actually caused the Commissioners Court to eliminate the OMB. (Doc. 67 at 6-7). In other words, Garcia opposes the jury's finding that her actions as alleged were a “causal link,” based on the Sims principle. Id. As to this, the jury was instructed that, after determining that Garcia had a retaliatory animus:

․ Plaintiff Katie Sanchez must show, by a preponderance of the evidence, that Defendant Frances Garcia had retaliatory animus against Plaintiff Katie Sanchez due to her exercise of her First Amendment rights and but for Defendant Frances Garcia's unlawful motives the Office of Management and Budget and Plaintiff's position would not have been eliminated.

(Doc. 61 at 6) (emphasis added). Here, as stated above, the Sims standard allowing for liability for non-final-decisionmakers where a defendant's retaliatory animus “is a link in the causal chain that leads to a plaintiff's firing” applies. Sims, 894 F.3d at 639; (See Doc. 61 at 5–6).

At trial, Plaintiff introduced evidence demonstrating that Garcia, as head of the County Treasury, could report directly to the Commissioners Court. (Doc. 80 at 125). Garcia was “good friends” with Commissioner Bentley, one of four commissioners on the court. Id. at 130: 1. During the week of August 15, 2018, Garcia met with Commissioner Vasquez and County Auditor Patty Roach (“Auditor Roach”) to discuss whether Garcia herself could assume the duties of the 0MB if the department were eliminated. Id. at 158. Garcia admitted she could “take over some ofth[o]se duties,” even though she knew she “could not be forced to take over the duties of the 0MB Director.” Id. at 159:15–16, 160:16–18. Commissioner Vasquez testified that he relied on the responses of Auditor Roach and Garcia in making his decision to eliminate the 0MB, and that Garcia could have answered in the negative to his question. Id. at 82–83. Further, and most importantly, if Garcia had responded as such, Commissioner Vasquez would not have continued to his questioning as to whether Auditor Roach or other County employees could handle Plaintiff's 0MB duties. Id. at 83.

Here, the undersigned finds that Plaintiff introduced sufficient evidence for a reasonable jury to find that Garcia's discussions and relationships with the various commissioners caused the elimination of the 0MB at the August 2018 vote. The jury could have found that Garcia's retaliatory animus, influence over individual commissioners and subsequent actions led to a chain of events culminating in the Commissioners Court voting to eliminate the 0MB, and that in the absence of Garcia's retaliatory motives, the 0MB would not have been eliminated. No complaints were filed against Plaintiff, and no prior budgetary concerns had been raised. The jury could have reasonably found that Garcia's actions seemingly took hold against the 0MB and Plaintiff after and solely because she announced her campaign for County Treasurer. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Garcia on the issue of causation.

iv. Objectively Reasonable Conduct

Garcia's last preserved argument is that her actions were objectively reasonable, in that Plaintiff's evidence did not show “reasonable County Treasures could differ” given Garcia's answering of Commissioner Vasquez's questions. (Doc. 67 at 10-11). As the jury was instructed, after determining that “Defendant Presidio County violated Plaintiff Katie Sanchez's First Amendment rights”:

If, after considering the scope of discretion and responsibility generally given to officials in performing their duties and after considering all of the circumstances of this case as they would have reasonably appeared to Defendant Frances Garcia at the time of the elimination of the Office of Management and Budget and Plaintiff Katie Sanchez's position, you find that Plaintiff Katie Sanchez failed to prove that no reasonable official could have believed that causing the elimination of the Office of Management and Budget and Plaintiff's position was lawful, then Defendant Frances Garcia is entitled to qualified immunity

(Doc. 61 at 6–8) (emphasis added). This was the third element of qualified immunity, which the Court submitted to the jury as a question of fact. See id. As noted above, the second question of whether Plaintiff's right upon which this claim is based was clearly established was decided by the Court in the affirmative as a question of law. Id. at 7.

Plaintiff presented evidence that Garcia was aware in 2018 of the First Amendment right to run for office, and that elected officials “cannot get others, either by influencing them or using other elected officials, to retaliate against your political opponents.” (Doc. 80 at 116: 16–19). Other evidence showed that Garcia told Jeannie Hall, the OMB's only other employee and Plaintiff's subordinate, to “not to worry about anything.” Id. at 163: 18–19.

Here, the undersigned finds that the evidence is slightly scanter than Garcia's other preserved contentions. However, the standard is not overwhelming evidence, or even a preponderance; rather, the standard for sufficiency is substantial evidence. See OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir. 2016). A reasonable jury could have concluded based on this evidence as well as other evidence indicating Garcia's retaliatory actions and strategizing that no reasonable official in Garcia's position as County Treasurer could have believed causing the elimination of the 0MB and Plaintiff's position was lawful, or as something other than illegal retaliation. The evidence presented, while perhaps relatively scarce, was “more than a mere scintilla.” Arismendez, 493 F.3d at 606. Therefore, sufficient evidence existed for the jury to believe that Garcia's actions were objectively unreasonable. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Garcia on the issue of objective reasonableness.

The undersigned finds that substantial evidence, viewed most favorably toward Plaintiff, supports the jury's verdict behind each of Garcia's preserved points for contention on the qualified immunity issue. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Garcia on all asserted and preserved grounds.

c. Waived Arguments

In a renewed motion under Rule 50(b), the Supreme Court has only required that the motion seeks “relief on similar grounds [sought] under [Federal] Rule 50(a) before the case was submitted to the jury.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008). The Fifth Circuit has attempted to clarify this “already well-established” standard, declaring that “[a]ny argument made ․ must have been previously made in a motion for judgment as a matter of law under [Federal] Rule 50(a).” Montano, 842 F.3d at 877; OneBeacon Ins. Co., 841 F.3d at 676. In other words, the Court is only able to grant a motion made pursuant to Federal Rule 50(b) “on the grounds advanced in the preverdict motion, because the former is conceived of as only a renewal of the latter.” Puga v. RCX Sols., Inc., 922 F.3d 285, 290 (5th Cir. 2018) (citing 9B CHARLES ALAN Wright & ARTHURR. MILLER, FEDERAL PRACTICE & PROCEDURE § 2537 (3d ed. 2021)). The Court is then permitted—though not required—to enter judgment as a matter of law for the movant “when it concludes that the evidence is legally insufficient.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006) (citing WRIGHT & MILLER,supra, at § 2533).

The pre-verdict Federal Rule 50(a) motion positioning—or even a defendant's objection to proposed jury instructions—must be “specific enough” so as to inform the Court of the movant's current position. Cajun Servs. Unlimited. LLC v. Benton Energy Serv. Co., No. 17-0491, 2020 U.S. Dist. LEXIS 103597, at *51–*52, 2020 WL 3188991, at *15 (E.D. La. June 15, 2020) (observing that a post-verdict motion can only raise a “more detailed version” of grounds stated in the pre-verdict motion); Patterson v. Yazoo City, Miss., 519 Fed. Appx. 838, 842 (5th Cir. 2013). Regardless, a defendant's Federal Rule 50(b) motion cannot “improperly exceed[ ] the scope of its [Federal] Rule 50(a) motion.” Network-I Techs. v. Hewlett-Packard Co., No. 6:13-CV-00072-RWS, 2021 U.S. Dist. LEXIS 92958, at *18–*19, 2021 WL 1941693, at *6 (E.D. Tex. May 7, 2021) (rejecting a post-verdict motion given the defendant's attempt to “encompass several additional reasons why the jury's ․ decision lacked sufficient evidence”).

i. Legislative Decision

Garcia argues that, as noted above, she did not violate Plaintiff's constitutional rights because “the decision of the Commissioners Court” would, if at all, have violated Plaintiff's rights. (Doc. 67 at 6–7). Garcia claims that the Commissioners Court's decision could not be used by Plaintiff “to impute an alleged retaliatory motive of Garcia to the action.” Id. at 5. However, nowhere did Garcia in her pre-verdict Original Motion address this sort of reverse-vicarious liability concern, that Garcia could not “be held liable for a legislative, budgetary decision”; Garcia only discussed her personal innocence for the actions of the County. Id. at 7; (Doc. 70 at 100–02 (advancing the position that Garcia did not violate Plaintiff's First Amendment rights based upon the aforementioned non-final-decisionmaker grounds)). As a matter of procedure, the Court cannot consider these “additional reasons” on a renewed Federal Rule 50(b) motion. See Network-I Techs., 2021 U.S. Dist. LEXIS 92958, at *18–*19, 2021 WL 1941693, at *6. Therefore, since Garcia's “legislative decision” argument was not raised during Original Motion at trial, the undersigned finds that Garcia waived this argument. Accordingly, undersigned will not consider this argument at this stage.

ii. Compensatory and Punitive Damages

The last issues raised by Defendant Garcia relate to compensatory and punitive damages. Here, Defendant Garcia did not raise any evidentiary sufficiency issues as to compensatory or punitive damages in her Original Motion at trial. (See generally Doc. 81). However, Defendant Garcia did approach the issues in her closing argument, but did not argue herself that there is insufficient evidence and only discreetly brushed the issue of compensatory damages. (Doc. 78 at 107–110); see Stelly v. W. Gulf Mar. Ass'n, 407 F. Supp. 3d 673, 686 (S.D. Tex. 2019) (“Plaintiff correctly points out that these arguments are improperly raised in [d]efendant's [Federal] Rule 50(b) motion because [d]efendant's [Federal] Rule 50(a) motion for judgment made no argument that the evidence did not support an award of punitive damages.”). Specifically, Garcia's Renewed Motion does not consider any issues of a lack of notice for mental anguish or any other reasons for denying compensatory or punitive damages, as Garcia claims in her present motion. (See Doc. 67 at 11-14). Therefore, since the oral Federal Rule 50(a) motion, failed to address these contentions, Garcia's legal sufficiency arguments as to compensatory and punitive damages are considered waived. See Stelly, 407 F. Supp. 3d at 686; Taylor v. Bigelow Mgmt., 2006 U.S. Dist. LEXIS 112500, at *2, 2006 WL 8437269, at* 1 (N.D. Tex. Feb. 22, 2006) (finding that defendants “waived their right to challenge the award of punitive damages in a [Federal] Rule 50[(b)] motion” since they did not raise a punitive damages challenge in a Federal Rule 50(a) motion). Accordingly, the undersigned is precluded from considering them at this stage.⁶

d. Overall Recommendation

The undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Garcia on all preserved grounds. Accordingly, the undersigned RECOMMENDS that Garcia's Renewed Motion be DENIED. (Doc. 67).

2) Defendant Presidio County's Renewed Motion

Defendant Presidio County seeks judgment as a matter of law as to whether Plaintiff proved: (1) Presidio County acted with a retaliatory motive in eliminating the 0MB; (2) Plaintiff's subsequent loss of employment constituted an adverse employment decision; (3) and Presidio County lacked a non-retaliatory basis for its decision to eliminate the 0MB. (Doc. 68 at 6–13).

a. Arguments

In effect, the County disputes the sufficiency of Plaintiff's evidence to establish her § 1983 retaliation claim. Liability under § 1983 for retaliation by a governmental entity against public employees requires that the plaintiff show:

(1) he suffered an adverse employment action; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighs the employer's interest in promoting efficiency in the workplace; and (4) his speech motivated the employer's adverse employment action.

Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016) (quoting Charles v. Grief, 522 F.3d 508, 510 n.2 (5th Cir. 2008)).

As to a lack of evidence to prove a retaliatory motive, the County notes that a non-majority of the commissioners provided testimony at trial, indicating that the jury lacked the grounds to determine the “motive of the majority of the commissioners who voted in favor of elimination.” Id. at 6. The County urges that the issue as to how many commissioners Plaintiff must prove acted with a discriminatory motive is undecided by the Fifth Circuit, making the issue one of first impression. Id. at 6–7. In any event, the County claims, it “can be subject to liability only if the County Commissioners as a body acted with unconstitutional motive,” per Texas state law. Id. at 7 (emphasis added).

Regarding the lack of an adverse employment decision, the County characterizes Plaintiff's employment situation as a voluntary change in employment which does not show that she was “discharged, demoted, reprimanded, transferred, or that the County refused to hire her.” Id. at 9. The fact that no “transfer” by the County occurred is dispositive, the County argues, because there was therefore no adverse employment action. Id. at 9–10. Lastly, the County argues that it has established a non-retaliatory basis for the 0MB decision, that being “to save money.” Id. at 11. This, the County claims, under the precedent of Mt. Healthy, does not satisfy the “but for” cause requirement under a First Amendment retaliation claim. Id.; Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (requiring a governmental entity to show “that it would have reached the same decision as to respondent's re-employment even in the absence of protected conduct”).

Presidio County also advances a ground for judgment as a matter of law as against compensatory damages, raising much ofthe same arguments as Garcia above. Id. at 13–15.

b. First Amendment Violations

i. Legal Standards Decided by the Court

The County also advances an additional argument that invokes a question of law, again decided by the Court before and during the trial. Specifically, the County disputed whether the appropriate standard for an adverse employment decision was whether “the new position proves objectively worse than the former position,” as opposed to a subjective standard. (Compare Doc. 68 at 8–>9, with Doc. 61 at 5). The appropriate legal standard is a question of law for the Court alone to decide; the Court decided the objective standard applies. (Doc. 61 at 5). The jury accordingly was thereafter asked to decide whether Plaintiff “suffered an adverse employment action” based upon an objective standard, only dependent on the classification of the County's action to eliminate the 0MB. See id. Thus, the Court should deny the County's Renewed Motion as to the existence of an adverse employment decision unless there was insufficient evidence for the jury to conclude that the marked termination of Plaintiff's position in the 0MB and her acquisition of new employment constituted an adverse employment action.

ii. Retaliatory Motive

The County first preserved argument is that Plaintiff's case provided insufficient evidence to demonstrate the County Commissioners “as a body acted with unconstitutional motive.” (Doc. 68 at 6–7). The jury was instructed:

As to the second element, to prove Plaintiff Katie Sanchez's political candidacy motivated Defendant Presidio County's decision to eliminate the Office of Management and Budget and her position, Plaintiff Katie Sanchez must show her candidacy was a substantial factor. In other words, Plaintiff Katie Sanchez must show that her candidacy was a motivating factor in Defendant Presidio County's decision to eliminate the Office of Management and Budget and her position as its director. Plaintiff Katie Sanchez need not prove her candidacy was the only reason Defendant Presidio County made the decision.

(Doc. 61 at 5–6) (emphasis added). In order to establish causation in a First Amendment retaliation suit, a “plaintiff must show that [her] protected speech was a substantial or motivating factor in defendants' actions.” Hinojosa v. Tarrant County, No. 4:08-CV-315-A, 2009 U.S. Dist. LEXIS 38208, at *18, 2009 WL 1309218, at *7 (N.D. Tex. May 5, 2009) (citing Mt. Healthy, 429 U.S. at 287).

Plaintiff introduced evidence indicating that Commissioner Vasquez discussed with Jeanne Hall (“Hall”), the OMB's only other employee, about finding her another job in Presidio County post-elimination, but not at all with Plaintiff. (Doc. 84 at 88). Commissioner Bentley reportedly did the same—she only spoke with Hall, and not with Plaintiff, about acquiring a new county government position once the 0MB was eliminated. Id. at 323. Plaintiff also demonstrated that Garcia is close friends with Commissioner Bentley and is related to Commissioner Vasquez by marriage. (Doc. 84 at 299:11, 50:22–23)

Furthermore, Plaintiff submitted evidence that Rod Ponton (“Ponton”), the Presidio County Attorney, had prior to the August 2018 vote to eliminate the OMB informed by speech and letter the Commissioners Court of his concerns that holding such a vote might “be construed as retaliation for [Plaintiff's] constitutionally protected speech.” (Doc. 84 at 268:24–25, 269:1). County Judge Cinderela Guevara (“Judge Guevara”) was able to detect, from Ponton's letter, that eliminating the 0MB “would appear as retaliation against her First Amendment right to run for office.” Id. at 155:25-156:13. Judge Guevara also found it unusual that Commissioner Vasquez placed the 0MB elimination item on the court agenda without first consulting her, which was inconsistent with their prior dealings. Id. at 150. Judge Guevara also offered several alternative departments for elimination if “cost savings” were the primary motivator, none of which were considered by the other commissioners. Id. at 154, 155:1–2. Judge Guevara testified that she thereafter developed “suspicions as to [Commissioner] Vasquez's and [Commissioner] Bentley's motivation.” Id at 157:12–23.

Here, the undersigned finds that Plaintiff's evidence was sufficient for a reasonable jury to find that Commissioner Bentley and Commissioner Vasquez held individual retaliatory motives. This only concerns two of four commissioners who voted for the OMB's elimination, however, which does not immediately satisfy the “majority-motivation” approach adopted in the Fifth Circuit. See Griggs v. Chickasaw County, 930 F.3d 696, 704–05 (5th Cir. 2019) (requiring plaintiff to show “a majority of the [governmental authority] had retaliatory animus”). The evidence indicates that Judge Guevara lacked retaliatory animus and did not support the elimination of the 0MB. Yet, the undersigned does find that the evidence is substantial enough to buttress the jury's conclusion that at least Commissioner Eloy Aranda (“Commissioner Aranda”), who also voted in favor of elimination, shared the other commissioners' retaliatory motives. The jury was presented with evidence which they could have reasonably concluded indicated Garcia had significant influence over Commissioner Bentley and Commissioner Vasquez. Every member of the court was aware due to Ponton's letter and speech of the potential for improper retaliation as a result of the vote, and Judge Guevara grew weary and suspicious of the veracity of the alleged “cost savings” motives. The jury therefore could have reasonably believed that Commissioner Aranda also possessed a substantial retaliatory motive, thereby signifying at least three of the four commissioners held such an animus, which satisfies the Griggs majority-motivation approach. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to the County on the issue of retaliatory motive.

iii. Adverse Employment Action

The County's second argument is that Plaintiff failed to prove that the decision to eliminate the OMB and her subsequent employment with the county jail was an adverse employment action by the County. (Doc. 68 at 10). As the jury was instructed:

adverse employment actions include discharges, demotions, refusals to hire, refusals to promote, and reprimands. They can also include transfers if they would be equivalent to a demotion. To be equivalent to a demotion, a transfer need not result in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse than the former position, such as being less prestigious or less interesting or providing less room for advancement.

(Doc. 61 at 5) (emphasis added). The Fifth Circuit has held that “[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep't of Crim. Just., Inst. Div., 37 F.3d 1146, 1149 (5th Cir. 1994)). A transfer may also constitute an adverse employment action or a demotion if “the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Petrie v. Salame, 546 Fed. Appx. 466, 470 (5th Cir. 2013) (quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999)); see also Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, at *4–*5, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020).

Plaintiff presented evidence demonstrating that she was did lose her job as a result of the OMB elimination. (Doc. 84 at 331:8). Plaintiff testified that she left her OMB Director position after the department had been queued for elimination for a jail clerk job with the Presidio County Sheriff's Department (“Sheriff's Department”). (Doc. 69 at 27). This new position placed her “at the bottom of the totem pole,” in a room with no windows, and in an environment in which she “wasn't able to move around a lot.” Id. at 29:24–25; 31:6. Further, Plaintiff lacked supervisory, administrative, and financial duties at the jail, all of which she had at the 0MB. Id. at 29:21–25. Additionally, Plaintiff was offered no transfer and no promise of a guaranteed continued position with Presidio County's government, unlike fellow 0MB employee Hall. (Doc. 84 at 88, 323).

Here, the undersigned finds that Plaintiff's evidence again was sufficient for a reasonable jury to find that, comparatively between jail clerk and 0MB Director, the elimination of the 0MB was a transfer or discharge, and in either event an objectively worse adverse employment decision. The jury could have reasonably found that because Plaintiff's position was eliminated, and no comparable position with Presidio County was offered, with Plaintiff being forced to transfer from the 0MB or find new employment with the Sheriffs Department jail. The jury could have reasonably found further that, in effect, Plaintiff's employment status objectively suffered. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to the County on the issue of the adverse employment decision.

iv. Non-Retaliatory Basis

The County's third preserved argument concerns Plaintiff's inability to refute the County's Mt Healthy defense. (Doc. 68 at 11–13). The jury was instructed:

If you find Defendant Presidio County has proved by a preponderance of the evidence that it would have eliminated the Office of Management and Budget and Plaintiff Katie Sanchez's position whether or not Plaintiff Katie Sanchez ran for public office, then you must return a verdict for Defendants Presidio County and Frances Garcia against Plaintiff Katie Sanchez.

(Doc. 61 at 6) (emphasis added). As noted, in order to establish causation in a First Amendment retaliation suit, a “plaintiff must show that [her] protected speech was a substantial or motivating factor in defendants' actions.” Hinojosa, 2009 U.S. Dist. LEXIS 38208, at *18, 2009 WL 1309218, at *7 (citing Mt. Healthy, 429 U.S. at 287). “Should plaintiff do so, the burden then shifts to defendants to show that they would have terminated plaintiff's employment absent [her] protected speech.” Id. (citing Mt. Healthy, 429 U.S. at 287).

As noted above, Plaintiff submitted evidence demonstrating that the Commissioners Court was well aware of the possibility that eliminating the 0MB would appear as unlawful retaliation. (Doc. 84 at 268:24–25, 269:1). Elsewhere, Plaintiff introduced evidence that agenda items addressing the elimination of the 0MB only surfaced after Plaintiff announced her campaign for County Treasurer. (Doc. 80 at 136, 140). Prior to Plaintiff's campaign, there was not one written complaint about the 0MB or Plaintiff's performance, and the issue had never been previously raised. (Docs. 80 at 136, 140; 84 at 40, 55–57). The 0MB was established as a necessary component to curbing accounting issues, and Judge Guevara believed Plaintiff herself was an “essential” employee. (Docs. 80 at 120–21; 84 at 152:19). Further, in the interest of cost savings, Judge Guevara suggested alternative departments which may be as viable for elimination, none of which were even considered by the other commissioners. (Docs. 80 at 171; 84 at 154, 155:1–2). Following the elimination, various budgets and salaries across the board increased, and even Hall herself was re-employed with benefits. (Docs. 80 at 177–79; 84 at 105–06).

Here, the undersigned finds that Plaintiff's evidence is “more than a mere scintilla,” and was sufficient to allow a reasonable jury to reject the Commissioners Court's Mt. Healthy defense. Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 606 (5th Cir. 2007). The question of whether the 0MB should be eliminated was never introduced prior to Plaintiff's campaign, and there were no performance-based reasons for doing so. As for cost savings inevitability, the elimination of other departments was not even considered, and expenses elsewhere increased post-elimination. Reading the facts in a light most favorable to Plaintiff, the jury could have reasonably found that Presidio County selected and targeted the 0MB for elimination only after and because Plaintiff ran for County Treasurer, thereby precluding a but-for justification. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Presidio County on the issue of its Mt. Healthy defense.

The undersigned has found that substantial evidence, viewed most favorably toward Plaintiff, supports the jury's verdict behind each of the County's preserved points for contention on the First Amendment retaliation issue. Accordingly, the undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Presidio County on all asserted and preserved grounds.

c. Waived Arguments

i. “Legislative Act”

Presidio County also advances positions relating to its budgetary decision being a “legislative act,” as well as the argument that the County cannot be liable on a theory of respondeat superior for Garcia's allegedly violative actions. (Doc. 68 at 4-5). While this may have some weight and may represent an alternative to Garcia's own reverse-vicarious liability claim, like Garcia's claim, this argument was not made in the County's Original Motion argued at trial. (See generally Doc. 70 at 107-112). Garcia did argue a similar position for herself based upon Texas state law—Garcia only raised the question in her Original Motion as to whether “a municipal official ․ possesses that final policy-making authority.” (Doc. 70 at 99). This is insufficient to assert the inverse for Presidio County. As discussed at length above, the Court cannot consider these “several additional reasons” on a renewed Federal Rule 50(b) motion. See Network-I Techs., 2021 U.S. Dist. LEXIS 92958, at *18–*19, 2021 WL 1941693, at *6. Because neither Plaintiff nor the Court could have detected that Presidio County would raise the inverse of the argument that Garcia herself raised, the presence of the position in the Renewed Motion is impermissible. Therefore, due to these inadequacies, it must be found that the County waived this set of arguments.

ii. Compensatory Damages

The last issue raised by the County relates to compensatory damages. Here, the County did not raise any evidentiary sufficiency issues as to compensatory or punitive damages in its Original Motion at trial. (See generally Doc. 70). The County only discreetly touched the issue of compensatory damages. (Doc. 78 at 107–110); see Stelly, 407 F. Supp. 3d at 686 (“Plaintiff correctly points out that these arguments are improperly raised in [d]efendant's [Federal] Rule 50(b) motion because [d]efendant's Federal Rule 50(a) motion for judgment made no argument that the evidence did not support an award of punitive damages”). The County's jury instructions further did not indicate any compensatory damages issues. (See Doc. 52). Therefore, since the oral Federal Rule 50(a) motion, failed to address these contentions, the County's legal sufficiency arguments as to compensatory damages are considered waived. See Stelly, 407 F. Supp. 3d at 686. Accordingly, the undersigned is precluded from considering them at this stage.⁷

The undersigned RECOMMENDS that judgment as a matter of law be DENIED as to Presidio County on all preserved grounds. Thus, the undersigned RECOMMENDS that the County's Renewed Motion be DENIED. (Doc. 68).

IV. DAMAGES CALCULATIONS

The undersigned finds as detailed above that the issues of compensatory and punitive damages as to Defendant Garcia and the issue of compensatory damages as to Defendant Presidio County were waived due to their absence in Defendants' respective Original Motions. However, the undersigned does find that the amounts awarded by the jury as to compensatory damages as well as to punitive damages are excessive.

1) Standard for Remittitur

The Court has the authority to recommend a decrease in the jury verdict. McDonald v. Bennett, 674 F.2d 1080, 1092 (5th Cir.), on reh'g 679 F.2d 415, 416 (5th Cir. 1982). This “remittitur” is a long-standing tradition that has been accepted throughout the Fifth Circuit and by the Supreme Court as a viable method of reducing the verdict amount “[i]f the trial court determines that the verdict in a case is excessive.” WRIGHT & MILLER, supra, § 2815; Nelson v. Parish of Washington, 805 F.2d 1236, 1237 n.1 (5th Cir. 1986) (citingBlunt v. Little, 3 F. Cas. 760 (1822)). Though Defendants here have not yet moved for a remittitur on their own, the Court may sua sponte raise and recommend it on its own volition. See Vadie v. Miss. State Univ., 218 F.3d 365, 378 (5th Cir. 2000); Linn v. United Plant Guard Workers of Am., 383 U.S. 53, 65–66 (1966) (“If the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial.”).

Yet, this sua sponte decision does not come without limits. Constitutional concerns require the Court to offer the party to be remitted the opportunity to seek a new trial. See Linn, 383 U.S. at 66. Plaintiffs are thus on a sua sponte offer given the choice of “accept[ing] the reduced amount of damages [or] instead proceed[ing] to a new trial.” WRIGHT & MILLER, supra, § 2815. However, this new trial opportunity is not itself unlimited—the Court is able to limit the scope of the proffered new trial to solely the issue of damages. See Keeler v. Richards Mfg. Co., 817 F.2d 1197, 1202 (5th Cir. 1987).

2) Compensatory Damages Award

a. Excessive Compensatory Damages

The jury awarded Plaintiff $1,000,000 in past and future compensatory damages. (Doc. 63 at 3). Aside from the arguments described above entailing the legal insufficiency of the evidence, which cannot be addressed due to Defendants' procedural error, Defendants did manage to raise challenges to the amount awarded itself. (See Docs. 67 at 11-14; 68 at 13-15). Courts recognize that, since Defendants “could not have known whether the award was excessive until the jury rendered its verdict,” that is, until after Defendants' pre-verdict Federal Rule 50(a) motions were due, the “issue has not been waived” for the Federal Rule 50(b) post-verdict motion stage. See Minter-Smith v. Mukasey, No. 3:03CV1057-DPJ-JCS, 2008 U.S. Dist. LEXIS 41313, at *24, 2008 WL 2164565, at *8 (S.D. Miss. May 22, 2008). In evaluating a jury award of compensatory damages, “there is a strong presumption in favor of affirming a jury award of damages.” Miniex v. Houston Hous. Auth., 400 F. Supp. 3d 620, 658 (S.D. Tex. 2019) (citing Giles v. Gen. Elec., 245 F.3d 474, 488 (5th Cir. 2001). When “it is [otherwise not] apparent as a matter of law that certain identifiable sums included in the verdict should not have been there,”⁸ the court “may not arbitrarily reduce the amount of damages” and must instead engage in a guided analysis to determine the excessiveness and extent of said excessiveness of the damages award. WRIGHT & MILLER, supra, § 2815.

In adjusting a damage award, the Fifth Circuit utilizes the “maximum recovery rule,” wherein courts are allowed to offer a remittitur of compensatory damages “reduc[ing] damages where the amount awarded is not disproportionate to at least one factually similar case from the ․ jurisdiction.” Miniex, 400 F. Supp. 3d at 659 (citing Lebron v. United States, 279 F.3d 321, 326 (5th Cir. 2002)). In other words, a “mainstay of the excessiveness determination is comparison to awards for similar injuries.” Minter-Smith, 2008 U.S. Dist. LEXIS 41313, at *25, 2008 WL 2164565, at *9 (quoting Salinas v. O'Neill, 286 F.3d 827, 830 (5th Cir. 2002)). Disproportionality is measured “by applying a percentage enhancement to past similar awards,” which provides a maximum of “50% for jury trials.” Puga v. RCX Sols., Inc., 922 F.3d 285, 297 (5th Cir. 2019). Looking to other decisions from the jurisdiction “involving comparable facts,” the maximum recovery rule thus “allows some leeway, ․ “permit[ting] a verdict at 150% of the highest inflation-adjusted recovery in an analogous, published decision.” Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019) (citation omitted). Furthermore, in examining factually similar cases, courts do “not apply a multiplier where such a calculation was a part of the award” and where the comparison case was “decided in close temporal proximity.” Minter-Smith, 2008 U.S. Dist. LEXIS 41313, at *26, 2008 WL 2164565, at *9 (quotation marks omitted) (citing Salinas, 286 F.3d at 831). In any event, for the issue of compensatory damages, if by a “review of the caselaw ․ there is no factually similar case ․, the maximum recovery rule is not implicated.” Miniex, 400 F. Supp. 3d at 659 (alteration omitted) (quoting Foradori v. Harris, 523 F.3d 477, 505 (5th Cir. 2008)).

b. Application to the $1,000,000 Jury Award

The Court has already held that the evidence presented could support more than a nominal award of damages; the only question submitted to the jury thereafter was whether Plaintiff should be awarded damages beyond nominal damages. (See Doc. 61 at 8–12; see also Doc. 63 at 3). Here, Plaintiff testified that, post-termination, she had to rely in part on her retirement to sustain herself and her family, to the tune of $15,000. (Doc. 70 at 66).⁹ Defendants as explicated above have waived their arguments as to the sufficiency of the evidence for past compensatory damages. Reviewing the evidence supporting a pecuniary damages award of$15,000 in the light most favorable to Plaintiff, the undersigned finds that the $15,000 pecuniary award is not excessive. Thus, the undersigned finds that Plaintiff's pecuniary damages as evidenced appropriately total $15,000. See Poliner v. Tex. Health Sys., 239 F.R.D. 468, 474 (N.D. Tex. 2006) (upholding summarily a $10,526.55 economic damages award as “not excessive”).

Since the past compensatory damages award totaled $500,000, and $15,000 represents the pecuniary damages amount, it follows that $485,000 was awarded for non-pecuniary or noneconomic damages. As to the non-pecuniary effects of Defendants' actions, compensatory damages can naturally include demonstrable economic and pecuniary damages and damages for physical harm, but may also be awarded for emotional distress and mental anguish.¹⁰ See Miniex, 400 F. Supp. 3d at 658. Specifically,

[c]ompensatory damages for emotional distress and other intangible injuries are not presumed from the mere violation of ․ statutory rights, but require specific individualized proof, including how each Plaintiff was personally affected by the discriminatory conduct and the nature and extent of the harm.

Decorte v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007). Ordinarily, for emotional distress damages, “to merit any award greater than nominal damages, emotional distress damages must be supported by competent evidence concerning the injury.” Giles, 245 F.3d at 488. Thus, in a§ 1983 case, “to recover more than nominal damages for emotional harm, there must be proof of actual injury resulting from the illegal conduct.” Vadie v. Miss. State Univ., 218 F.3d 365, 376 (5th Cir. 2000) (citing Carey v. Piphus, 435 U.S. 247, 266 (1978)). Nonetheless, “corroborating testimony and medical evidence is not required in every case involving compensatory damages.” Decorte, 497 F.3d at 442 (citing Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046–47 (5th Cir. 1998)). A plaintiff is required to demonstrate “a specific and discem[i]ble injury” in order to rely on her testimony alone. Brady v. Fort Bend County, 145 F.3d 691, 720 (5th Cir. 1998).

In the present case, Plaintiff testified that the impending termination of her job at the OMB along with her subsequent employment with the county jail caused her to have headaches and sleepless nights. (See Doc. 69 at 32, 36). Furthermore, Plaintiff's new position required her to remain still for elongated periods of time, which led to her feet swelling and an increase in blood pressure. Id. at 31. Plaintiff developed heart palpitations and gained weight due to her sedentary position. Id. at 32. Plaintiff additionally was treated for fatigue, chest pain and discomfort, as well as night sweats and disturbance of breath. (Doc. 70 at 74-75). For many of these symptoms, Plaintiff sought medical attention. (See generally Doc. 69 at 72-79). On a nontangible front, Plaintiff testified that she developed depression and felt lost, embarrassed in public by her loss of employment at the OMB. Id. at 34-37. This embarrassment was so severe that Plaintiff felt the need to move from Marfa to San Angelo, since she was under the impression that she had been “thrown away like dirt.” (Doc. 69 at 38). Plaintiffs husband's testimony and medical records presented at trial corroborated much of her testimony. (Doc. 70 at 91–95).

These symptoms are evocative of the Miniex, Salinas, and Minter-Smith cases. In Miniex v. Houston Housing Authority, the district court remitted an award of $317,750 for past noneconomic damages to $217,070.34. 400 F. Supp. 3d at 661. There, the plaintiff claimed that she became ‘‘unhappy, afraid, stressed, and on edge,” and developed other health issues. Id. at 657–68 (internal quotation marks omitted). She looked to a psychiatrist to deal with her post-termination anxiety, citing her “difficulty finding work, [ ] damages to her professional reputation, and her financial precarity.” Id. at 658. The jury awarded inter alia $317,750 in past mental anguish damages. Id. The district court there remitted the past damages award based on the “highest inflation-adjusted recovery in an analogous, published Fifth Circuit decision.” Id. at 661 (alteration omitted) (citing Giles, 245 F.3d 474, for the proposition that the highest such award was $150,000 in 2001 dollars).

Salinas v. O'Neill is also instructive. In Salinas, the Fifth Circuit remitted a $300,000 noneconomic jury award by half, to $150,000. 286 F.3d at 833. There, the plaintiff alleged that his employer retaliated against him in denying him a promotion, which led to a “high level of paranoia regarding further retaliation” and “particular manifestations of his emotional harm in health problems.” Id. This evidence was also corroborated by the plaintiff's wife. Id. With these considerations in mind, the Fifth Circuit found necessary a remittitur of $150,000. Id.

Minter-Smith v. Mukasey is another case from within the Fifth Circuit where a district court remitted a jury award for emotional damages from $300,000 to $150,000. 2008 U.S. Dist. LEXIS 41313, at*31, 2008 WL 2164565, at*11. There, the plaintiff testified that the defendant's retaliation “caused fatigue, stress, headaches, anxiety, depression, sleeplessness, chest pains, humiliation, weight loss, panic attacks, skin rashes, and marital problems.” Id. at *26. She further visited the hospital for chest pains and saw a counselor, who at trial “inform[ed] the jury that [she] appeared physically exhausted, cried, and appeared depressed.” Id. The district court considered these damages substantial, but not worthy of a $300,000 award in 2008 dollars. Id. at *31.

Defendants' reliance on Hitt v. Connell is unapt and misplaced. 301 F.3d 240 (5th Cir. 2002); (see Doc. 67 at 13; Doc. 68 at 14–15). In Hitt, the Fifth Circuit examined the excessiveness of a jury award of $300,000 for the plaintiff based upon a retaliation claim. 301 F.3d at 250-51. In overturning the district court's entry of judgment on the award, the Fifth Circuit noted that there was no “corroborating evidence with respect to [the plaintiff's] emotional distress,” “no medical evidence ․ [or] testimony from family members,” and “no evidence of physical manifestations of distress.” Id. at 251. The Fifth Circuit further found it was able to cabin the plaintiff's own testimony to just two short paragraphs. Id. In deciding that the verdict was excessive, the Fifth Circuit concluded that what testimony the plaintiff did provide was “vague, conclusory, and uncorroborated.” Id. (citation omitted).

Unlike Hitt, Plaintiff here directly cited several instances of her emotional distress. She presented medical records featuring diagnoses for illnesses suffered, and her husband corroborated many of her woes. This testimony is significantly more descriptive and thus reminiscent of Miniex, instead of the vague allegations in Hitt. Similarly to Miniex, Plaintiff's job elimination made her depressed. She became so overwhelmed with embarrassment, depression, and transience that she believed it was necessary to move between towns. Surely feeling like one has been “thrown away like dirt” is, while nonquantifiable, is nonetheless compensable. (Doc. 69 at 37). Not only was her condition in such decline that even her husband noticed, but her mental state manifested itself thru various physical symptoms, from a swelling of her feet and an increase in blood pressure, to heart palpitations, fatigue, night sweats, insomnia, chest pain, and noticeable weight gain. She sought medical attention for many of these issues. These symptoms and conditions paint a picture much more emblematic of Miniex than Defendants would prefer to admit.

Therefore, the undersigned believes it best to follow the “highest inflation adjusted recovery” from an analogous case, being here Miniex. See Miniex, 400 F. Supp. 3d at 659 (quoting Longoria, 932 F.3d 360). Although here, unlike in Miniex, Plaintiff did not experience diminished future earnings, “having viewed the testimony,” the [undersigned] finds that an award approximating that of Miniex is appropriate. See, e.g., Minter-Smith, 2008 U.S. Dist. LEXIS 41313, at *31, 2008 WL 2164565, at *11. Adjusting for inflation,¹¹ the Miniex court's remitted 2019 award of $217,070.24, the undersigned finds a basepoint of $232,908.02. However, the undersigned, having considered the gravity of Plaintiff's situation and distress, finds it necessary to utilize a proportional increase as allotted by the maximum recovery rule. See Puga v. RCX Sols., Inc., 922 F.3d 285, 297–98 (5th Cir. 2019); accord Longoria, 932 F.3d at 365. At a maximum 50% on top of the inflation-adjusted Miniex award, the undersigned finds $349,362.03 to be the maximum recoverable amount for past noneconomic damages ¹² Off of the $485,000 jury verdict award for past noneconomic damages, this figure represents a total past noneconomic damages remittitur in the amount of $135,637.97.

The above analysis regards past compensatory damages only. As to future damages, the undersigned believes the $500,000 award is entirely excessive. At trial, Plaintiff indicated that she still feels embarrassed and is continues to be treated for some of the mental anguish she experienced. (See Doc. 69 at 39-41). Plaintiff also mentioned that she is unsure of whether she will continue working because she is “[a]n old fat lady now.” Id. at 39. However, Plaintiff did not introduce evidence that her employability would have decreased at a lower rate if she remained with the 0MB; thus, only her claimed future emotional distress damages will be considered. As to these damages, Plaintiff's emotional toll was said to be ongoing at the time of trial.

Miniex is instructive here as well. There, with the same facts, the jury had also awarded in tandem with a $317,750 award for past mental anguish damages, the jury also provided $215,000 for future mental anguish damages. 400 F. Supp. 3d at 658. However, the district court found that the plaintiff failed to “specifically testify that she currently sees ․[a mental health] professional,” and that she “did not testify in any detail as to how the retaliation she suffered in [2018] currently affects her.” Id. at 662 (emphasis in original). Here, while there is a monumental amount of evidence as to Plaintiff's past emotional distress, there is very little evincing her ongoing condition as of the time of trial. In fact, some of her physical symptoms—claimed to be resultant of her emotional distress—have seemed to dissipate. (Doc. 70 at 79 (referring to recent weight loss after a post-elimination gain)). Even though Plaintiff was again diagnosed in November 2020 with fatigue, the undersigned finds this is insufficient for the jury to draw the inference that Plaintiff's seemingly improving conditions as of late have continued at the same intensity since the 0MB elimination. See id. at 76-77. Thus, the undersigned finds that this evidence is not persuasive enough to constitute “specific individualized proof” of future injury as required by the Fifth Circuit. See Decorte v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007); see also Miniex, 400 F. Supp. 3d at 662. Therefore, Plaintiff is entitled only to nominal damages to compensate her future emotional distress. Accordingly, the undersigned believes Plaintiff's future compensatory damages should be remitted to a nominal sum of $1,000, for a total future compensatory damages remittitur of $499,000.

c. Compensatory Damages Conclusion

Under the maximum recovery rule entailed above, once the Court has decided remittitur is appropriate, the Court must reduce the jury's award to the maximum of Plaintiff's demonstrated emotional and mental anguish damages plus her pecuniary damages, with little discretion otherwise. The undersigned finds that Plaintiff's past non-pecuniary damages total $349,362.03, and future nominal non-pecuniary damages $1,000, for a total non-pecuniary damages award of $350,362.03. Combined with Plaintiff's $15,000 worth of pecuniary damages, the undersigned reaches a maximum recoverable amount of $365,362.03.

To reiterate, as between both Defendants, therefore, the undersigned believes the evidence is sufficient only to prove past compensatory damages in the amount of $349,362.03, future compensatory damages in the amount of $1,000, and the proven pecuniary or economic damages in the amount of$15,000. The total compensatory damages award therefore is $365,362.03, and the jury award beyond that amount is excessive. Accordingly, the undersigned RECOMMENDS that the jury's award of compensatory damages be remitted to the Plaintiff in the amount of $634,637.97.

3) Punitive Damages

The jury also awarded Plaintiff $1,000,000 worth of punitive damages. (Doc. 63 at 3). Garcia raised another challenge to this award, notably that it was “grossly excessive.” (Docs. 67 at 14). Federal courts examine whether a punitive damages award is excessive under the United States Constitution by assessing three factors outlined in BMW of North America v. Gore. 517 U.S. 559, 575 (1996). These factors are “(1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the harm suffered and the damage award; and (3) the difference between the damages awarded in this case and comparable cases.” Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 943 (5th Cir. 1996) (citing BMW, 517 U.S. at 574–75).

In evaluating the first factor, courts place great emphasis on reprehensibility, which stands “the most important indicium ofreasonableness.” Jimenez v. Paw-Paw's Camper City, Inc., 2002 U.S. Dist. LEXIS 3248, at *37, 2002 WL 257691, at *12 (E.D. La. Feb. 22, 2002) (citation omitted). Several considerations are to be made in the reprehensibility determination, notably whether:

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). In this case, undersigned finds that Garcia's conduct stands a medium degree of reprehensibility. This situation contrasts with those circumstances in which a “high degree” of reprehensibility has been found, which tend to involve racially inflammatory, “repeated, extensive, [and] ethnically hostile verbal abuse” or equally egregious conduct. See Paw-Paw's Camper City, 2002 U.S. Dist. LEXIS 3248, at *39, 2002 WL 257691, at *13 (characterizing Rubinstein v. Administrators of the Tulane Educ. Fund., 218 F.3d 392 (5th Cir. 2000), and P.H.P. Healthcare, 90 F.3d 927, as such cases).

At trial, Plaintiff presented evidence that Garcia engaged in clandestine operations which involved planting the 0MB elimination idea in the County Commissioners' minds. There was no practical evidence produced of any direct deceit, physical contact, bullying, or discrimination based upon Plaintiff's age, gender, race, or other protected characteristic. The incident of origin for Plaintiff's troubles was isolated—a single vote leading to the termination of the 0MB. Perhaps to Plaintiff's chagrin, the isolation was even more clear given Hall's provision of another position with Presidio County, thereby leaving no other 0MB employees lacking comparable employment than Plaintiff. The evidence of emotional suffering, however, is strong and present, and is the State Farm consideration most amenable to an award of punitive damages. Additionally, while “trickery and deceit are more reprehensible than negligence,” Garcia's actions in inciting the elimination of the 0MB are poised somewhat near a midpoint of the two. See BMW, 517 U.S. at 576. Thus, the undersigned finds that Garcia's conduct was moderately reprehensible.

For the second factor, the undersigned finds that the relationship between Plaintiff's harm and the $1,000,000 punitive damages award is not unconstitutionally disproportionate. Generally, punitive damages are constitutionally pegged to a ratio of ten times the available compensatory damages award. TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 481-82 (1993); see also Lewis v. Pugh, 289 Fed. Appx. 767, 777 (5th Cir. 2008) (finding a “5:1” ratio as “not so disproportionate as to jar one's constitutional sensibilities”); but see Paw-Paw's Camper City, 2002 U.S. Dist. LEXIS 3248, at *48, 2002 WL 257691, at *16 (approving an 80,000 to 1 ratio while acknowledging that said ratio was “far in excess of any other ratio that has been affirmed in the reported case law”). Here, as noted above, the undersigned finds that only $365,362.03 of compensatory damages are allowed. This value represents the maximum amount of actual or potential harm Plaintiff has demonstrated she experienced. See Stevenson v. LaSalle Corr. Transp., LLC, 2015 U.S. Dist. LEXIS 179783, at *12, 2015 WL 11120728, at *4–*5 (N.D. Tex. Apr. 21, 2015) (analyzing the ratio using post-reduction award figures). While the undersigned does not believe $3,653,620.30—ten times the remitted compensatory damages award—worth of punitive damages is warranted, the undersigned does find that a ratio of 1:2.737 falls well within accepted ranges, and that the $1,000,000 award is therefore not unconstitutionally excessive. At this point, the two factors are inconclusive.

Regarding the third factor, where “consideration of the [BMW] factors is inconclusive, courts compare the award in question with awards approved in similar cases.” Faulkenberry v. Yost, 2018 U.S. Dist. LEXIS 1248, at *30, 2018 WL 297615, at *11 (W.D. Tex. Jan. 3, 2018). However, after a review of the available case law, the undersigned is left with no factually similar case alleging comparable claims and rights violations. Few cases in the Fifth Circuit have dealt with First Amendment retaliation lawsuits against individual government officials in which the aggrieved plaintiff's position was eliminated, and fewer still have involved a jury award of punitive damages. In the one case of record that has, over $546,000 in punitive damages was awarded, but seemingly inadvertently; the parties on appeal “agreed that these damages should be set aside,” and no excessiveness analysis was conducted. See Brady v. Hous. Indep. Sch. Dist., 113 F.3d 1419, 1422 n.4 (5th Cir. 1997). “[A]s no previous case has manifested with all of the factors now present in this case, and as the United States Supreme Court has clearly stated no bright-line test exists and no mathematical formula should be employed,” the undersigned must make a determination with the limited BMW and constitutional guideposts at hand. Allen v. Takeda Pharms. North Am, Inc., No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 152066, at *176, 2014 WL 5461859, at *54 (W.D. La. Oct. 27, 2014).

As to Garcia, the undersigned believes that the jury award of punitive damages beyond $5,000 is excessive in proportion to the evidence provided.¹³ Although the Fifth Circuit itself and district courts throughout it have upheld punitive damage awards in ranging from eighteen million to nearly thirty-seven million dollars, the case here is so far estranged from the facts of these other cases that a comparison would be futile. See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 886 (5th Cir. 2013) (misappropriation of trade secrets); Allen, 2014 U.S. Dist. LEXIS 152066, at *177, 2014 WL 5461859, at *55 (products liability for medication). Furthermore, the proportion the undersigned has suggested here is infinitesimally less than 1:1 with compensatory damages, which should be far from “jar[ring] one's constitutional sensibilities.” See Rubinstein, 218 F.3d at 409. Therefore, the undersigned finds that the award to the extent it applies beyond the amount of $5,000 is excessive. The undersigned believes this amount to be fair, just, and proportionate to the moderate reprehensibility of Garcia's conduct. The undersigned is aware that the resulting remittitur may seem a towering amount, especially given the lack of Fifth Circuit insight into the specific issue. Nevertheless, the undersigned “finds it must reach, at the end of the day, a monetary determination, if for no other purpose than to provide those [c]ourts higher than this one the opportunity to grant clarity and instruction in this important area of the law.” Allen, 2014 U.S. Dist. LEXIS 152066, at *177, 2014 WL 5461859, at *54. Accordingly, the undersigned RECOMMENDS that the jury's award of punitive damages be remitted to the Plaintiff in the amount of $995,000.

4) Damages Recommendation

The undersigned as indicated above finds that the critical mass for the jury's past and future compensatory damages award is $365,362.03; for the jury's punitive damages award, $5,000. The undersigned believes that Plaintiff's demonstrated maximum compensatory damages, as noted above, is $365,362.03, but that Defendant Garcia's personal reprehensibility is insufficient to warrant more than a $5,000 punitive award. The punitive amount in remittitur is far below the typical ten-to-one ratio and is therefore viable.

This offer of remittitur must be accompanied by an offer for new trial in the alternative, the scope of which the Court has the power to limit solely to the issue of damages for Defendants' violations. See Vadie, 218 F.3d at 378. Accordingly, the undersigned RECOMMENDS that the District Judge order a new trial on the issue of damages unless Plaintiff accepts a remittitur package as follows: (I) Defendant Garcia in the amount of $995,000, reducing the punitive damages award to $5,000; (2) Defendant Garcia and Defendant Presidio County in the amount of $634,637.97, reducing the compensatory damages award to $365,362.03.¹⁴

This comes to a fair and just outcome for both Plaintiff and Defendants. Accordingly, the undersigned RECOMMENDS Defendants' Renewed Motions be DENIED IN MAJOR PART and GRANTED IN PART. (Docs. 67, 68).

V. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS Defendants' Renewed Motions be DENIED IN MAJOR PART and GRANTED IN PART. (Docs. 67, 68).

The undersigned also RECOMMENDS that the District Judge order a new trial on the issue of damages unless Plaintiff accepts a remittitur package as follows: (1) Defendant Garcia and Defendant Presidio County in the amount of $634,637.97, reducing the total compensatory damages award to $365,362.03; (2) Defendant Garcia in the amount of $995,000, reducing the total punitive damages award to $5,000. The final award, should Plaintiff accept the remittitur package, between both compensatory and punitive damages, will be $370,362.03.

SIGNED this 3rd day of November, 2021.

INSTRUCTIONS FOR SERVICE AND RIGHT TO APPEAL/OBJECT

In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy unless the time period is modified by the District Judge. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Judge need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the U.S. Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Judge. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

FOOTNOTES

1.   Notably, the phraseology of Federal Rule 50 has since changed from “judgment notwithstanding the verdict” to “renewed motion for judgment as a matter of law.” 9B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 2785 (3d ed. 2021) (describing a series of amendments culminating in the 1991 update which resulted in the current terms). Defendants acknowledge this thirty-year-old anachronism but nevertheless continue to utilize the outdated terminology. (Doc. 67 at 3; Doc. 68 at 3).

2.   Plaintiff additionally has two pending motions of her own: a Motion for Attorney Fees and an accompanying and procedurally required Motion for Judgment. (Docs. 65, 66). The procedural requirements for an award of attorney's fees also invokes Federal Rule 58. Typically in federal civil litigation, an opinion does not itself dispose of the case by judgment, and a judgment must be entered. WRIGHT & MILLER, supra, at § 2785. The Federal Rules require that final judgment be entered upon approval of a form of judgment whenever “the court grants other relief not described in [Federal Rule 58(b)].” FED. R. CIV. P. 58(b)(2). An award for attorney fees, costs of court, and pre- and post- judgment interest is not described in Federal Rule 58(b). See generally FED. R. CIV. P. 58(b)(2); Kirk v. Miss. Dep't of Pub. Safety, No. 3:14-cv-537-WHB-RHW, 2017 U.S. Dist. LEXIS 214481, at *15, 2017 WL 4844383, at *5 (S.D. Miss. Sept. 12, 2017) (entering final judgment awarding post-judgment interest pursuant to Rule 58). Therefore, final judgment based upon Plaintiff's proposed additional awards must be approved by the Court. See Davis v. McDuffie, No. 9:07-CV-19, 2010 U.S. Dist. LEXIS 164194, at *4, 2010 WL 11622738, at *2 (E.D. Tex. Aug. 25, 2010) (approving mediation results for pre- and post-judgment interest pursuant to Federal Rule 58). Due to the current procedural posture of the case and the undersigned recommendation for remitter or alternatively a new trial, the Motion for Attorney's Fees should only be adjudicated following the Court's final disposition and entry of final judgment of the pending Renewed Motions.

3.   Documents 81 and 82 are Defendants' Original Motions. The documents take a number beyond that of the currently pending, post-trial Renewed Motions, marked Documents 67 and 68, because Defendants neglected to properly file their Original Motions once they had been argued orally at trial. (See Doc. 70).

4.   It might be said that the phrase “entry of judgment” would indicate that Defendants' Renewed Motions are premature. See, e.g., Smith v. Metro Sec., No. 18-953, 2019 U.S. Dist. LEXIS 128467, at *11, 2019 WL 3521923, at *4 (E.D. La. July 29, 2019) (“Because judgment has not yet been entered, the Court will not now address the issues raised by the Defendants' renewed motion for judgment as a matter of law, and therefore denies the motion as premature ․”); Barry v. Medtronic, Inc., 230 F. Supp. 3d 630, 636 n.1 (E.D. Tex. 2017) (finding that, since judgment had not yet been entered, “motions under [Federal] Rule 50(b) ha[d] not yet been made”). However, relying upon this procedural technicality, if it were to exist, would merely require the court to deny Defendants' motions as premature, “without prejudice to Defendants' rights to re-file the motion ․ following the Court's entry of judgment.” Smith, 2019 U.S. Dist. LEXIS 128467, at *12, 2019 WL 3521923, at *4. Why the district courts in the cited cases believed judgment was necessary is not apparent; under applicable Fifth Circuit precedent, even when “the Court has not yet entered judgment, the Court can and [here] will consider [Defendants' Federal Rule 50(b)] motion[s].” Pechon v. La. Dep't of Health & Hosps., No. 08-0664, 2009 U.S. Dist. LEXIS 65376, at *9, 2009 WL 2046766, at *3 (E.D. La. July 14, 2009) (citing Swift v. State Farm Mut. Auto. Ins. Co., 796 F.2d 120, 122 (5th Cir. 1986)); see also Puga v. RCX Sols., Inc., 922 F.3d 285, 290 (5th Cir. 2019) (opting to review the district court's denial of a renewed motion for judgment as a matter of law filed prior to the entry of judgment under the Federal Rule 50(b) analyses).

5.   Both Defendants incorporate each other's arguments in their Renewed Motions. (Doc. 67 at 1; Doc. 68 at 1).

6.   The undersigned finds it important that these issues considered to be waived cannot be challenged as to the sufficiency of the evidence on appeal under the substantial evidence standard. See Flowers v. S. Reg'l Physician Servs., 247 F.3d 229, 238 (5th Cir. 2001). Any “issues raised for the first time on appeal [to the Fifth Circuit] are reviewed only for plain error.” United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 963 (5th Cir. 1998). This is a much lower standard than “substantial evidence,” and requires that the verdict will be upheld “[i]f any evidence exists that supports the verdict.” Flowers, 247 F.3d at 238. Alternatively, if Garcia files a motion for a new trial, she may be able to raise this challenge prior to entering appeal. See Bigelow Mgmt., 2006 U.S. Dist. LEXIS 112500, at *2–3, 2006 WL 8437269, at *l.

7.   Alternatively, if Presidio County files a motion for a new trial, it may be able to raise this challenge prior to entering appeal. See Bigelow Mgmt., 2006 U.S. Dist. LEXIS 112500, at *2–3, 2006 WL 8437269, at *1.

8.   As described in detail above, Defendants' failure to raise the evidentiary insufficiency issues as to damages in their Federal Rule 50(a) motions precludes the Court from considering the viability of the awards as a matter of law.

9.   Although Plaintiff's counsel argues that “she lost out on six years of income at about $45,000 per year,” Plaintiff herself admitted that the position she assumed with the Sheriff's Department paid “about the same.” (Docs. 71 at 9; 70 at 57). Therefore, the salary will not be recoverable as compensatory damages since she did not lose out on any salary or wages.

10.   In the below analysis, “emotional distress” will be used to refer to Plaintiff's “emotional pain and suffering [and] mental anguish.” See Giles v. Gen. Elec., 245 F.3d 474, 488 n.24 (5th Cir. 2001).

11.   See U.S. Inflation Calculator, https://www.usinflationcalculator.com/. Although Miniex was decided slightly more than two years prior to the release of this Report and Recommendations, the COVID-19 pandemic has led to such substantial inflation increases that foreclosing an adjustment based on the Minter-Smith admonition would be inequitable to Plaintiff.

12.   Plaintiff attempts to cite Tureaud v. Grambling State Univ., 294 F. App'x 909 (5th Cir. 2008), as instructive as to the reward for compensatory damages. (Doc. 71 at 12–13). While the Fifth Circuit there upheld a noneconomic damages award of $140,000 in a retaliation case similar to the facts in this case, 294 F. App'x at 910-11, for the purposes of the caselaw cross-referencing maximum recovery rule, the Fifth Circuit does not consider unpublished opinions from the jurisdiction in making the benchmark determination. See Longoria, 932 F.3d at 365 (limiting the rule to “analogous, published decision[s]”) (emphasis added); see also Miniex, 400 F. Supp. 3d at 661 n.195 (declining to follow Tureaud in the same fashion).

13.   The undersigned reiterates that this Report and Recommendation makes no determination as to the legal sufficiency of the evidence.

14.   If adopted, the total damages award will be reduced from $2,000,000, to $370,362.03, for a reduction of just under 82%, or $1,629,637.97. In anticipation of a possible challenge to remittitur, it should be noted that the amount of this reduction is well within the confines of the Court's authority. The Court is to consider “the kind and size of the award, the amount by which it [is] reduced, and the relationship between the size of the award to the evidence adduced in support of it.” See Allen, 2014 U.S. Dist. LEXIS 152066, at *147, 2014 WL 5461859, at *45. The undersigned's above explication of the evidence in the record sufficiently provides a foreground for this determination and does not constitute such a “strain[ on] credulity” as to paint the jury award as being “so large that it reflected passion or prejudice.” Wells v. Dallas Ind. School Dist., 793 F.2d 679, 683–84 (5th Cir. 1986) (finding than an unsubstantiated 87% remittitur offer made remittitur inadequate). While an 82% remittitur is by no means insignificant, the damage award was still produced not by passion or prejudice, but rather by evidence presented at trial. Furthermore, the remittitur proposed here falls noticeably short of the seven-to-one or more ratios found improper by the Fifth Circuit. See Wells, 793 F.2d at 684 (“[T]oday's case, in which the district court felt compelled to reduce a $1.9 million award by more than an order of seven, is one in which the jury award was so large that it reflected passion or prejudice.”); see also Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 603 (5th Cir. 1988) (another 87% award reduction invalidated).

DAVID B. FANNIN UNITED STATES MAGISTRATE JUDGE